CPL. LINUS EYO & ANOR v. MAJOR SUNDAY JACKSON & ORS.
(2012)LCN/5620(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of October, 2012
CA/C/98/2011
RATIO
APPEAL: WHETHER A RESPONDENT TO AN APPEAL WHO DID NOT FILE A CROSS APPEAL OR RESPONDENT’S NOTICE CAN FORMULATE ISSUES
The law is known that a Respondent to an appeal who did not file a cross appeal or a Respondents’ notice, cannot formulate issues for determination in the appeal outside the grounds of appeal contained in the Appellants’ notice of appeal. See AKINSOBOLA v THE STATE (1991) 8 NWLR (208) 191; OSSAI v. WAKWAH (2006) ALL FWLR (303) 239; AKINLAGUN v. OSHOJOBA (2006) ALL FWLR (325) 53. PER MOHAMMED LAWAL GARBA, J.C.A.
APPEAL: ROLE OF THE APPELLATE COURT WHERE A RESPONDENT HAS NOT FILED A CROSS APPEAL
Although the principles of law in judicial practice allow a Respondent in an appeal, to raise and argue a preliminary objection in the Respondent’s brief, which flies in the face of the provisions of Order 10, Rule 1 of the Court of Appeal Rules 2011, the principles do not permit such a Respondent to merely raise it as an issue in the brief. Reacting to a similar situation in the case of EZUKWU v UKACHUKWU (2004) 7 SC (Pt.1) 96 at 101, the Supreme Court had held that:
“The position of the law is that where a respondent has not filed a cross appeal, the role of the appellate court is limited to seeing whether or not the decision of the court below is correct. Such a respondent does not have an unrestrained or unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed. See the case of DR. J. M. UDOM v. MICHELETTI & SONS (1982) 7 SCNJ 438 at 457; (1997) 8 NWLR (Pt.516) 187. PER MOHAMMED LAWAL GARBA, J.C.A.
JURISDICTION: CIRCUMSTANCES WHERE THE ISSUE OF JURISDICTION WILL BE INCHOATE
The issue of jurisdiction which can be raised at any stage in the proceedings can only become live and be properly raised if and when the Appellants were granted the requisite leave to appeal against the interlocutory decision of the High Court. In the absence of a right of or necessary leave to appeal, an issue of jurisdiction would remain inchoate and not arise for determination in an appellate court because its jurisdiction in such a situation would not have been invoked. PER MOHAMMED LAWAL GARBA, J.C.A.
APPEAL: EFFECT OF ABSENCE OF THE REQUISITE LEAVE TO APPEAL
The absence of the requisite leave to appeal renders an appeal purported and incompetent in law. See AJA v OKORO (1991) 7 NWLR (203) 260; NALSA & TEAM ASSO. V NNPC (1991) B NWLR (212) 652; SHAKA v SALISU (1996) 2 NWLR (428) 22; FBN PLC v BUKAR (1997) 1 NWLR (483) 625; SPDC v KATAD NIG. LTD. (2006) 1 NWLR (960) 198. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. CPL. LINUS EYO
2. CAPTAIN ANTHONY ASUQUO Appellant(s)
AND
1. MAJOR SUNDAY JACKSON
2. W/O PAUL JUMBO
3. MAJOR PAUL UDO NYOYOKO (CNC) Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Akwa Ibom a ruling delivered on the 7/12/10 in suit No.HU/503/2008 by which it refused and dismissed the motion dated the 5/7/10 by the Appellants. In the said motion, the Appellants had sought for the following reliefs:-
“1. An order of court extending time within which the 1st and 2nd defendants/applicants may appeal against the “Ruling” that was delivered in this case on 30th June, 2010.
2 An order granting the 1st and 2nd defendants/applicants leave to appeal against the Ruling of 30th June, 2010.
3. An order granting the 1st and 2nd defendants/applicants leave to appeal on mixed law and facts.
4. An order of court staying execution of the orders contained in the Ruling of 30th June, 2010, pending the determination of the Appeal that shall be filed after leave is granted for filing.
5. IN THE ALTERNATIVE an order of court discharging the order that was made by this Honourable Court or setting aside the Ruling of this court delivered on 30th June, 2010 and striking out this case on ground of lack of jurisdiction.
AND for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances of this suit.”
Not satisfied and being aggrieved by the decision of the High Court, the Appellants filed, through their counsel, a notice of appeal against it on the 7/12/10 containing 5 grounds. Because of their nature, it is expedient to invite the grounds, without the particulars, to set the tone of the appeal. They are thus:-
“GROUND ONE:
That the Ruling/Decision was against the weight of evidence.
GROUND TWO:
That the decision contained in the Ruling of 2nd December, 2010 was an abuse of process of court and miscarriage of justice against the 1st defendant/appellant who was restrained in the Ruling of 30th June, 2010 from “parading himself or acting as the State Chairman of Nigerian legion, Akwa Ibom State Council until the substantive suit is fully heard and determined or until the court directs otherwise.”
GROUND THREE:
The learned trial judge erred in law when he refused to hold that he lacked jurisdiction to hear the substantive suit as a Court of 1st instance (or a trial court), but that he had an appellate jurisdiction.
GROUND FOUR:
The learned trial judge erred in law when he refused to grant leave to the defendants/appellants to appeal against his Ruling of 30th June, 2010 and thereby deprived the defendants/appellants of fair hearing.
GROUND FIVE:
The learned trial judge erred in law when he refused to hold that the provisions of the Nigeria Legion Electoral Regulations (made pursuant to section 5(1) of the Schedule of the Nigerian Legion Act, Cap. 314, Laws of the Federation 1990, which is in pari material with section 5(1)(f) of the Schedule of the Nigerian Legion Act, Cap.N119, Laws of the Federation of Nigeria , 2004) were applicable to the election of the 1st Defendant/Appellant – which was being challenged in the substantive suit.”
In line with the practice in the court, the Appellant’s brief was filed on the 3/6/11 while the Respondents’ brief filed on 8/9/11, was deemed on the 21/5/12. Learned counsel who appeared for the parties at the hearing of the appeal on the 2/10/12; Mr. Felix Udom for the Appellants and Mr. Emmanuel Sampson for the Respondents, adopted their respective briefs as their submissions in support of their different positions in the appeal. We were urged to uphold the submissions and decide the appeal accordingly. In the course of preparing this judgment, I observed that the Respondents’ brief was not signed but because it was deemed without objection from the learned counsel for the Appellants, by the court at the hearing of the appeal, the fact alone would not occasion any prejudice or miscarriage of justice on the part of any of the parties. It is expedient in the circumstance to proceed with the determination of the appeal on the presumption that the brief was competent. See TITILAYO v OLUPO (1991) 7 NWLR (205) 519 at 538; ONYEKWE v. STATE (1988) 1 NWLR (72) 565.
The learned counsel for the Appellants has raised three (3) issues in his unpagenated brief as follows:-
a) Whether the lower court (High Court 5, Uyo) presided over by Hon. Justice Andrew Okon has jurisdiction to hear the substantive suit?
b) Whether the Appellants were deprived of fair hearing when the lower court presided over by Hon. Justice Andrew Okon refused to grant all the prayers/reliefs sought by them in the application that they filed on 5th July, 2010?
c) Whether the provisions of the Nigerian Legion Electoral Regulations (made pursuant to section 5(1) of the schedule of the Nigerian Legion Act, cap. 914, Laws of the Federation, 1990, which is in pari material with section 5(1)(f) of the Schedule of the Nigerian Legion Act, N119, Laws of the Federation of Nigeria, 2004) were applicable to the election of the 1st Appellant?
In the submissions on the issues, he said issue (a) was from ground three, issue (b) from ground four and issue (c) from ground five, of the notice of appeal. So no issue was raised or distilled by the Appellants, counsel from the grounds of appeal one and two on the notice of appeal.
For the Respondents’ three (3) issues were also raised for decision in the appeal as follows:-
“1. Whether this appeal is sustainable when the leave of court was not obtained before filing the notice of appeal.
2. Whether section 48 of Nigerian Legion Electoral Regulation was the law at the time the cause of action in suit No.HU/503/2008 arose and whether the trial court had jurisdiction to try the suit.
3. Whether the Appellants were denied fair hearing.
There is no indication in the brief as to from which of the grounds of the appeal, since the Respondents’ did not file a notice of cross appeal, the above issues were formulated by the Respondents. The law is known that a Respondent to an appeal who did not file a cross appeal or a Respondents’ notice, cannot formulate issues for determination in the appeal outside the grounds of appeal contained in the Appellants’ notice of appeal. See AKINSOBOLA v THE STATE (1991) 8 NWLR (208) 191; OSSAI v. WAKWAH (2006) ALL FWLR (303) 239; AKINLAGUN v. OSHOJOBA (2006) ALL FWLR (325) 53. Without indicating from which of the grounds of appeal the Respondents’ issues were raised, it would be speculative to say they are from the Appellants’ grounds of appeal. However, what can easily be observed is that none of the issues arises or comes from the Appellants’ grounds one and two from which the Appellants’ counsel did not formulate issues too. Since none of the parties has formulated issues from the Appellants’ grounds one and two, the law deems that the said grounds are abandoned. See OBASI v. ONWUKA (1987) 7 SCNJ, 84; WAEC v ADEYANJU (2008) 6 MJSC, 1. The said grounds are struck out for being abandoned.
I have also observed that the Respondents’ issue 1 above is not derivable from any of the grounds of the appeal, but appears and was argued in the form of a preliminary objection to the competence of the appeal. Although the principles of law in judicial practice allow a Respondent in an appeal, to raise and argue a preliminary objection in the Respondent’s brief, which flies in the face of the provisions of Order 10, Rule 1 of the Court of Appeal Rules 2011, the principles do not permit such a Respondent to merely raise it as an issue in the brief. Reacting to a similar situation in the case of EZUKWU v UKACHUKWU (2004) 7 SC (Pt.1) 96 at 101, the Supreme Court had held that:
“The position of the law is that where a respondent has not filed a cross appeal, the role of the appellate court is limited to seeing whether or not the decision of the court below is correct. Such a respondent does not have an unrestrained or unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed. See the case of DR. J. M. UDOM v. MICHELETTI & SONS (1982) 7 SCNJ 438 at 457; (1997) 8 NWLR (Pt.516) 187.
As stated above, the issue under consideration is not derived from the Appellant’s grounds of appeal. The issue is in the nature of a preliminary objection for determination before hearing the appeal in which issues for determination are raised. See NIGER PROGRESS LTD. v N.E.I. CORPORATION (1989) 4 SC (Pt.II) 164; (1989) 3 NWLR (Pt.107) 68 at 82. Learned counsel ought to have raised the issue by way of preliminary objection pursuant to Order 2 Rule 9(2) of the Supreme Court Rules. As an issue for determination this appeal it is incompetent.”
In the above premises, the Respondents’ issue 1 which is in the nature of a preliminary objection is incompetent and liable to be struck out since it was not even moved before the adoption of the briefs at the hearing of the appeal. It is struck out.
Now, looking carefully at the decision of the High Court appealed against, its substance was on the prayer for leave to appeal against the Ruling of 30/6/10 by which an order of injunction was made against the Appellants by the High Court. I have above set out the reliefs sought by the Appellants in the motion filed on 5/7/10 and from which this appeal emanated. The primary relief sought was for leave to appeal which was refused. The issue of jurisdiction which can be raised at any stage in the proceedings can only become live and be properly raised if and when the Appellants were granted the requisite leave to appeal against the interlocutory decision of the High Court. In the absence of a right of or necessary leave to appeal, an issue of jurisdiction would remain inchoate and not arise for determination in an appellate court because its jurisdiction in such a situation would not have been invoked. The issue of the jurisdiction of the High Court to entertain the Respondents’ case raised by the Appellants in this appeal would ultimately determine the appeal the Appellants’ had sought leave to file in the motion leading to the present appeal.
In fact and law, all that the Appellants’ needed to do when the High Court refused them leave to appeal, was to have made a similar application before this court as provided by the provisions of Section 24 (3) of the Court of Appeal Act which says:-
“24. (3) where an application for leave to appeal is made in the first instance to the court below a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.”
Order 7 Rule 3 of the Court of Appeal Rules, 2011 provides that:-
“7.3. Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.”
The community effect of the provisions of section 24 (3) of the Court of Appeal Act and Order 7, Rule 3 of the Court of Appeal Rules is that an application for leave to appeal made to the court below which was refused, can and should be made to the court within fifteen (15) days of the refusal. Until an application for leave refused by the court below was made to the court and granted, there would no right in a party to appeal and there can be no competent appeal before the court over which it can properly assume and exercise jurisdiction.
The Appellants in the above circumstances ought to have had recourse to and utilized the provisions of section 24(3) and Order 7, Rule 3 above by filing a similar motion to the one refused by the High Court, in this court for leave to appeal. Because the Appellants can only appeal against the interlocutory Ruling of the High Court with either the leave of High Court or of this court first sought and obtained, the absence of the requisite leave would render them incapable of invoking the jurisdiction of the court over any complaint they might have against the interlocutory ruling/decision of the High Court. The exercise of the right of appeal granted by the provisions of section 242 (1) of the 1991 Constitution (as altered) is subject to the grant of leave by the High Court or this court as clearly stated in the section. It is only when such leave was granted that a competent appeal would come into existence or being and competent issues, including that on jurisdiction can be raised or arise therein for it is a condition precedent to the appeal. The absence of the requisite leave to appeal renders an appeal purported and incompetent in law. See AJA v OKORO (1991) 7 NWLR (203) 260; NALSA & TEAM ASSO. V NNPC (1991) B NWLR (212) 652; SHAKA v SALISU (1996) 2 NWLR (428) 22; FBN PLC v BUKAR (1997) 1 NWLR (483) 625; SPDC v KATAD NIG. LTD. (2006) 1 NWLR (960) 198.
However, the fact that the Appellants have refused, opted or failed to utilize the provisions of Section 24 (3) of the Court of Appeal Act and Order 7 Rule 3 of the Court of Appeal Rules, does not take away their right to appeal against the refusal by the High Court to grant them leave to appeal. But, the right to appeal in such a situation is restricted and confined to the reason for the refusal to grant leave to appeal simpliciter and the primary relief to be sought on the notice of appeal ought to be an order granting such leave.
In the present appeal, the Appellants’ grounds of appeal set out earlier are widely outside the reason for the refusal by the High Court to grant them leave to appeal against the Ruling of 30/6/10 and have gone beyond it. The relief sought on the notice of appeal is for the court to set aside the ruling of 2/12/12 and strike out the Respondents’ case on the ground that the High Court lacked jurisdiction to hear it as a trial court, again beyond the refusal of leave to appeal. The grounds of appeal and the reliefs sought on the notice of appeal have taken the Appellants’ appeal out of the realm of the refusal by the High Court in its ruling, to grant leave to the Appellants to appeal against its interlocutory ruling. The grounds and the reliefs make the Appellants’ appeal one for which they require leave to appeal on issues outside and not touching on the refusal by the High Court to grant them leave to appeal. The Appellants by the reliefs sought on the notice of appeal are not seeking leave which was refused by the High Court, but rather asking the court to strike the case before the High Court because of which the Appellants have no valid or competent appeal before the court.
In the above circumstances, I find the grounds and the appeal incompetent and because it was argued, it is dismissed.
The parties shall bear their costs of prosecuting the appeal.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I agree with his reasons and final conclusion. I adopt all the orders contained therein as mine in dismissing this appeal.
JOSEPH TINE TUR, J.C.A.: I read in advance a copy of the judgment delivered by Mohammed Lawal Garba, JCA and I also find the appeal incompetent.
The plaintiffs/Respondents and the defendants/appellants were members of the Nigerian Legion in Essien Udim Local Government Area Council of Akwa Ibom State of Nigeria. Elections were conducted into the various offices of the Legion in Akwa Ibom State on 12th day of November, 2008 in which the 1st defendant/appellant (CPL Linus Eyo) and the 2nd plaintiff/respondent are alleged to have emerged as duly elected Chairman of the Area Council in Akwa Ibom State. When an amicable settlement of the crisis could not be arrived at the plaintiffs/respondents instituted an action before the High Court of Justice, Uyo Akwa Ibom State on 20th November, 2008 seeking the following declaratory reliefs against the defendants/appellants to wit:
1. A declaration that the 1st defendant did not qualify to contest the Nigerian legion state election conducted on 12th November, 2009 as a candidate having not been elected as the chairman of his Area council in Essien Udim Local Government Area. Therefore his purported election as the state chairman of Nigeria Legion is null and void.
2. A declaration that 2nd plaintiff was duty elected as Area chairman of Essien Udim Local Government Area of Nigeria Legion.
3. A declaration that the plaintiff was the only qualified candidate for chairmanship election of Nigeria Legion, Akwa Ibom State Council conducted on 12th November, 2008, and therefore, he was the winner of that election as the State Chairman of Nigerian Legion, Akwa Ibom State Council.
4. An order directing the 3rd defendant to present the 1st and 2nd plaintiffs as the chairman of Nigerian Legion, Akwa Ibom State Council and Nigerian Legion Essien Udim Local Government Area Council as State Chairman and Area Council Chairman respectively to the Governor of Akwa Ibom for swearing in.
5. An order that 1st and 2nd defendants should jointly or severely pay to the plaintiffs the sum of N10,000,000 (Ten million thousand naira) for damages.
6. A perpetual injunction restraining the 1st defendant from parading himself as chairman of Nigerian Legion, Akwa Ibom State council and chairman, Essien Udim Area Council Chairman.”
On 28th November, 2008 the plaintiffs/respondents brought a motion under Order 38 rule 1 of the High Court (Civil Procedure) Rules, 2009 praying for interlocutory injunction restraining the 1st defendant/appellant from parading himself as State Chairman of the Nigerian Legion, Akwa Ibom State pending the determination of the substantive trial. The prayer was granted on 30th June, 2010. The learned trial judge ordered that during the pendency of the order the 1st defendant/appellant shall not be recognized or presented for swearing in as the state chairman of the Legion. If any important or urgent situation arose requiring action by the legion pending the order of the interlocutory injunction, the Commissioner, Ministry of women Affairs and social welfare being the supervisory Ministry, shall appoint in writing a suitable member of the Legion, Akwa Ibom State to act until the substantive suit is determined or until the Court directs otherwise.
The learned trial Judge further directed that the order shall be served on the Commissioner. The case was then fixed for continuation on 27th July, 2010. See the enrolled order of the Court at page 113 of the printed record of appeal. On 5th July, 2010 the defendants/applicants brought an application supported by affidavit praying for extension of time and for leave of the trial Court to appeal to the Court of Appeal against the ruling of 30th June, 2010 and for stay of execution of the orders contained therein pending the determination of the appeal by the Court of Appeal. In the alternative the defendants/appellants asked that the order be discharged and the substantive suit struck out on the grounds the High Court lacked the jurisdiction to have entertained the suit and made the orders of 30th June, 2010. According to the applicant/defendants the application was necessitated by the fact that the appeal was against an interlocutory ruling of 20th June, 2010; the grounds also involved questions of mix law and fact. The application was opposed by the plaintiffs/respondents. On 2nd December, 2010 the learned trial Judge dismissed the application as lacking in merit. On 7th December, 2010 the appellant lodged an appeal against the ruling on five grounds. The three issues set down for determination by appellants and the respondents have already been reproduced by my Lord in the lead judgment. I need not reproduce them again.
My humble view is that there is no merit in any of the issues set down by the appellants or the Respondents for determination. The learned trial Judge granted interlocutory injunction against the 1st defendant/appellant restraining him from parading himself or acting as the state chairman of Nigerian Legion, Akwa Ibom state, etc, on 30th June, 2010. The application seeking leave of that Court for extension of time to appeal and for leave to appeal was filed on 5th July, 2010. But the learned trial Judge heard and dismissed the application on 2nd December, 2010. By this date the 14 days time prescribed for the learned trial Judge to have heard and granted the appellants’ leave to appeal to the Court of Appeal had expired contrary to Section 24(1)-(4) of the court of Appeal Act, 2011 which provides as follows:
“24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
b) in an appeal in a criminal cause or matter ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the court below a Person making such application shall, in addition to the period prescribed by subsection (2) of this section, he allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend periods prescribed in subsections (2) and (3) of this section.”
Only the Court of Appeal has the statutory powers and may upon the expiry of the 14 days or any time prescribed for seeking leave from the Court below to appeal to the Court of Appeal, extend that period if same had expired. See Mohammed vs. Ola (1990) 4 SCNJ 23; Ezen Wosu vs. Ngonadi (1992) 3 SCNJ 59; Owoniboys Technical Services Ltd. vs. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550; Dopemu Adeyeri & Ors. vs. Akinbode Okobi & Ors. (1989) 5 NWLR (Pt.119) 1 and C.C.B. vs. Attorney-General, Anambra State (1992) 10 SCNJ 137.
The appellants did not seek leave nor extension of time from this Court to appeal against the ruling of the learned trial Judge upon the expiry of the 14 days stipulated under section 24(2)(a) of the Court of Appeal Act, 2004 hence this appeal is incompetent. See Adelekon vs. Ecu-Line NU (2006) All FWLR (Pt.321) 1213; Ajibade vs. Pedro (1992) 5 NWLR (Pt.241) 257 at 262; Opriyo vs. Omoniwari (2007) 16 NWLR (Pt.1060) 415 at 443-444; C.B.N. vs. Okojie (2002) 8 NWLR (Pt.768) 48 and Unity Bank Plc vs. Bouari (2008) 7 NWLR (pt.1086) 372 at 398.
Accordingly, the appeal being incompetent, the issue touches on the question of lack of jurisdiction of this Court to entertain the grievances of the appellants. This is a situation where the Court can take objection to the competence of this appeal without waiting for Counsel.
See Bayero vs. Mainasara & Construction Nigeria Ltd. (2007) All FWLR (Pt.359) 1285 at 1314 paragraph “F” – “G”.
On the whore I strike out the appeal and abide by the orders of my Lord.
Appearances
Mr. Felix UdomFor Appellant
AND
Mr. Emmanuel SampsonFor Respondent
